Tort Law and Remedies – Environment Law Notes

A plaintiff in tort law/action may sue for damages or an injunction, or both.

Damages

Damages are the pecuniary compensation payable to the commission of a tort. Damages may be:

Substantial

Exemplary

Substantial damages are awarded to compensate the plaintiff for the wrong suffered. The purpose of such damages is restitution. i.e. restore the plaintiff to the position he or she would have been in if the tort has not been committed

Exemplary damages are intended to punish the defendant for the outrageous nature of his/her conduct. Damage is irreversible damage. – punish the person for committing the tort

Injunction

An injunction is a judicial process where a person who has infringed or is about to infringe the rights of another, is restrained from pursuing such acts. It may require a party to do a particular thing or to not do. Injunctions are of two types:

Temporary

Permanent

Nuisance

A nuisance means anything that annoys, hurts or offends; but for an interference to be an actionable nuisance, the conduct of the defendant must be unreasonable and must exist for a reasonable period of time.

Public

Private

A public nuisance interferes with the quality of life of a class of persons who come within its neighbourhood. It is both a tort and crime.

A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land. An action for private nuisance may seek injunctive relief as well as damages.

Private Nuisance Cases

J.C. Galstaun v. Dunia Lal seal

Plaintiff has a garden house and the defendant has a shellac factory situated 200 or 300 yards to the north-west of it.

The defendant discharges the refuse liquid of his manufactory into a municipal drain that passes along the north of plaintiff’s garden. This has damaged him in health, comfort and the market value of his garden property. The liquid is foul smelling.

Held: Plaintiff is entitled to restrain the defendant from discharging the refuse liquid of his factory into Municipal Drain. Injunction and substantial damages awarded.

B. Venkatappa v. B. Lovis

Mandatory Injunction directing the defendant directing the defendant to close the holes in a chimney facing the plaintiff’s property.

The smokes and fumes that materially interfered with ordinary comfort were enough to constitute an actionable nuisance.

Three important points from this case:

Actual injury to health need not be proved

Existence of other sources of discomfort in the neighbourhood was no defence

Court rejected the defence that plaintiff came to the nuisance

The fact that nuisance existed long before the complainant occupied his premises, does not relieve the offender.

Kuldip Singh v. Subhash Chandra Jain

The plaintiff feared that the baking oven and 12-foot chimney built by his neighbour would cause a nuisance when the bakery commenced.

The Supreme Court drew a distinction between an existing nuisance and future nuisance.

In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat is so certain or imminent that an injury actionable in law will arise unless prevented by an injunction.

Actionable Nuisance

Ram Baj Singh (Dr.) v. Babulal

Doctor complained (plaintiff) – the brick grinding machine was generating dust which polluted the atmosphere and entered the consulting chamber of the plaintiff. – caused physical inconvenience to him and his patients.

The test which has always been used is the test of ascertaining the reaction of a reasonable person according to the ordinary usage of mankind living in a particular society in respect of the thing complained of.

Special Damage & Substantial Injury: Doctor complained asking for both of these

Special Damage is used to indicate damage caused to a party in contra-distinction to damage caused to the public at large.

However, a single act may amount to a public nuisance and also give rise to a cause of action to an individual to sue on basis of public nuisance.

In assessing the nature of the substantial injury, the test to be applied is again the appraisement made of the injury by a reasonable person belonging to the society.

Public Nuisance

A public nuisance may be broadly defined as an unreasonable interference with a general right of the public. It is not tied to interference with enjoyment and use of the property.

Section 268 of IPC – a person is guilty of public nuisance that does any act or is guilty of an illegal omission which causes any injury, danger or annoyance to the public.

A common nuisance is not excused on the ground that it causes some convenience or advantage.

Section 133 of CRPC provides an independent, speedy and summary remedy against a public nuisance. Section empowers a magistrate to pass a conditional order for removal of public nuisance within a fixed period of time.

Cases

Deshi Sugar Mills v. Tupsi Kahar

The sub-divisional magistrate ordered that the two sugar mills in the locality should discontinue draining dirty and toxic water into the river. On Appeal, Patna HC held categorically that under the law, the magistrate had the power to proceed against discharge of effluents.

However, it could not be decided merely because a number of persons thought that stagnation and impurity of water was due to sugar mills. The decision was specific to the point that section 133 can be used for preventing public nuisance. However, the discretion is on the magistrate to decide what type or quantum of evidence should support the decision, is left to the magistrate. The discretion has to based on sufficient evidence.

Raghunandan v. Emperor

The Allahabad HC upheld the order of a magistrate forbidding a factory owner from operating his factory engines from 9 pm to 5 am on the ground that it was ‘injurious to the physical comfort of the community’.

The nuisance of such a nature would undoubtedly affect those living in the neighbourhood of the factory.

Shaukat Hussain v. Sheodayal

The court tried to limit the application of provision only to actual nuisance and not to entitle it to the case of potential nuisance.

SECTION 133 Code of Criminal Procedure

Municipal council, Ratlam v. Vardichand

Sub-divisional magistrate was moved to take action under s. 133 CRPC to abate the nuisance by ordering the municipality to construct drain pipes with the flow of water to stop the stench. The municipality cannot extricate itself from the responsibility. The plea that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no judicial basis.

Magistrate’s responsibility under s. 133 CRPC is to order the removal of such nuisance at a time to be fixed in the order. Failure to comply with the direction will be visited with a punishment contemplated by sec. 188 IPC.

Krishna Gopal v. State of MP

A complaint against noise and air pollution from a glucose saline manufacturing company installed in a residential locality. A lady resident complained about constantly being disturbed in sleep. The magistrate acted quickly and ordered it to close it down. Sessions court – instead of removal of the whole factory, the only boiler needs to be removed.

HC- preferred the standby magistrate and ordered closure of factory

Issue- whether an order of public nuisance can be made by a single person?

It is not the intent of the law that community as a whole or large should come forward to lodge their complaint. A mere reading of Section 133 would show that jurisdiction of sub-divisional magistrate can be invoked on receiving a report of a police officer or other information and on taking such evidence if any, as he thinks fit. It can be made by a single person.

Himmat Singh v. Bhagwana

Working with fodder cutting machines caused noise and smell. Sand laden winds carried particles of fodder to a residential colony. Rajasthan HC- all of these constituted public nuisance justifying the interference of district magistrate.

Do specific Legislations repeal Sec. 133 CRPC?

Kerela HC and MP HC held that Water and Air Acts are later special enactments which are presumed to have repealed the prohibitions of a public nuisance under CRPC. ( implied repeal)

Abdul case: Discharge of pollutants into the river had caused the death of children and animals. The executive magistrate abstained from taking action under sec. 133 of CRPC pointing out to remedies under Water and Air Acts, limiting the law of public nuisance by the application of the doctrine of implied repeal.

However, Division Bench Kerela HC overruled the decision of Tata Tea of implied repeal – M. Krishna Panicker v. Appukuttam Nair – the water act did not repeal the law of public nuisance under CRPC. Zrepeal is a legislative exercise, Tata tea’s assumption of implied repeal could not be agreed upon.

State of MP v. Kedia Leather & Liquor Ltd.

The sub-divisional magistrate directed the respondents to close their industries on the ground that discharge of effluents to the nearby stream caused danger to the health of villagers thereby resulting in public nuisance.

Implied repeal can be found only when the provisions of the later act are inconsistent with or repugnant to the provision of an earlier act so that the two cannot stand together. Section 133 does not deal with future/ potential nuisance – only with Actual. Section 133 coexists with water and Air act.

Negligence

A common law action for negligence may be brought to prevent environmental pollution.

The plaintiff must show that:

The defendant was under the duty to take reasonable care to avoid damage complained of

There was a breach of duty

Breach of duty caused damage

An act of negligence may also constitute a nuisance if it unlawfully interferes with the enjoyment of another right in the land.

The causal connection between the negligent act and the plaintiff’s injury is often the most problematic link in pollution cases.

The causal link is more tenuous when the effect of the injury remains latent over a long period of time.

Naresh Dutt Tyagi v. State of UP

Chemical pesticides stored in a go-down in residential area – Death of 3 children and foetus in mother’s womb – clear case of negligence

Strict and Absolute Liability

Strict liability

Rylands v. Fletcher

A person is strictly liable when he brings or accumulates anything on his land, something likely to cause harm if it escapes, and damage arises as a natural consequence of its escape. Strict Liability is subject to a number of exceptions:

Act of God

Contributory negligence

Plaintiff’s consent

Act of third party

Absolute Liability

Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those are affected by the accident and such liability is not subject to any exceptions.

Prescriptive Right to commit Nuisance

Prescriptive right to commit (private) nuisance may be acquired if a person has continued with an activity on the land of another person for 20 years or more.